Crime and Punishment in Liberal Democratic Doctrine

7/28/2019 Crime and Punishment in Liberal Democratic Doctrine

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Crime and Punishment in Liberal Democratic Doctrine

Sukumar Muralidharan

Colloquiumon Capital Punishment: State and Society

Indian Institute of Advanced Study, ShimlaMay 27 2013

I thank the IIAS for this invitation to a colloquium which addresses

an issue of profound moral significance. It is an issue that has been

off the radar of public scrutiny and debate for a long while, thanks

it seems to two presidents of the republic who chose evasion rather

than a frontal engagement with the ethical issues it posed. It has

been restored front and centre in the moral universe by a president

who has suffered no such qualms and has it seems, quite gladly

gratified a partisan political urge to seek electoral advantage from

being seen to be tough on terrorism. The issue of the death penaltyhas in the process re-entered the public discourse. And maybe it is

because I have a predisposition towards recognising only the points

of view that are in accord with mine, I have a distinct feeling that

the majority of expert commentary we have had since the two recent

executions, has tended to see the death penalty as indefensible, both

morally and legally.

Where there have been efforts to justify the death penalty, these

have not arisen from any manner of a rigorous assessment of its

deterrent effect, but from a misplaced sense of deference to the law

as it exists and the institutions that embody its processes andprinciples.

The conventional moral calculus we are taught, holds that it is a far

greater iniquity for one innocent man to be punished than for several

wrong-doers to go free. It is a serious stigma for any kind of a

political order, leave alone one that lays claims to being a

democracy, to be accused of executing a person without adequate

cause. Elaborate arguments are then advanced that the criteria of

adequacy have been fulfilled, both in standards of proof needed to

impose this ultimate sanction, and the requirements of fair procedure

in evaluating all relevant evidence.

Words of caution are offered to defuse the outrage, but little done

to deprecate the unseemly revelry on display in certain quarters over

executions carried out by the State. The conscience-stricken

opponents of capital punishment are advised that too strong a

denunciation of the processes through which the death penalty is

awarded and enforced, will undermine popular faith in the

institutions of governance. When all procedures prescribed under the

law have been followed -- and the final recourse, which is the appeal

for clemency, has been exhausted the public must simply learn to

put up with the death penalty as a necessary evil, enforced for its

own protection. That is part of the argument often heard in recent


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months: the death sentences recently implemented have been upheld by

the Supreme Court which is final not because it is infallible, but

invested with the cloak of infallibility because it is final.

This is an argument for political conformity, for accepting the need

for discrete silence where the credibility of the institutions ofgovernance is at stake. It also disregards several recent admissions

from the highest court in the land that it has so far been absolutely

unable to evolve sound and consistent norms for imposing the death

penalty.1

Before going any further into questions of ethics and political

morality, let me turn towards something that I find a curiosity about

the mood of agitation over the death penalty. Considered in purely

numerical terms, the current level of public engagement with capital

punishment might seem a bit of an indulgence. In the last eighteen

years, we have had four executions under the law. There are, bycurrent estimations, fewer than five hundred convicts under the

shadow of death, either at various stages in the appeals process or

awaiting the outcome of mercy petitions. These are not insubstantial

figures, but there is a strong probability that several among the

five hundred on death row, in fact, the majority, would be reprieved

at some point in the appeals process. The number whose final clemency

pleas have been turned down would number fewer than twenty.

The specific details of each prisoner trapped within the process that

is designed to lead, ultimately, to his extinction as a person and an

identity, needs to be explored. A modern liberal-democratic orderinstitutes a judicial process governed by certain universally

accepted rules of fairness, beyond which, there is an opportunity

afforded to the condemned man to invoke the power of mercy held in

reserve by the sovereign he is obliged to serve. Once that recourse

fails, he is left with no claims to staying alive. His life is as

good as extinct.

Purely as a detour into irony: the notion of the sovereign as the

ultimate protector, which also reserves to itself the right to

1

In 2006, despite over a quarter century of evolving jurisprudence overthe death penalty emanating from the formulation in the Bachan Singh case

that it should only be enforced in the rarest of rare cases, a two-judge

bench of the Supreme Court effectively threw up its arms at the absence of

clear norms. The bench of Justices S.B. Sinha and Dalveer Bhandari

expressed its frustration rather directly, while commuting a death

sentence: No sentencing policy in clear terms has been evolved by the

Supreme Court. What should we do? (Cited in Lethal Lottery, A Study of the

Death Penalty in India, Amnesty International India and the Peoples Union

for Civil Liberties, Tamil Nadu and Pondicherry, May 2008, p 90). This

volume also presents a number of arguments by a small but committed number

of judges on the Supreme Court, especially in the 1980s, that made out a

strong case for the abolition of the death penalty. Notable figures here

would be V.R. Krishna Iyer, D.A. Desai, O. Chinnappa Reddy and P.N.Bhagwati.


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extinguish human life when provoked to extreme wrath, is obviously a

legacy from less enlightened times of despotism. There was a practice

in medieval times that an execution once ordered, had to be carried

out swiftly. The executioner here was regarded as the kings

champion, chosen to represent his will to do justice. Capital

punishment was a gesture of absolute power that the sovereignauthority had reserved for himself, which necessarily would be

imposed on one who had violated the law and caused injury to the

body politic. If the execution was botched or for some reason

failed, there would be a popular clamour for the pardon of the

convict.2 A sovereign capable of implacable wrath and infallibility

in establishing guilt and innocence, also had to execute his will

with a comparable sense of purpose. A botched execution detracted

from that image of a sovereign of unbending resolve and all-knowing

power. It was an unwitting admission of fallibility which placed an

obligation on him to rescind the sentence of death.

Loosely applying these principles today, consider what it would mean

for a government invested with the power to inflict death, that it

should secure all necessary legal warrants for the purpose, but

falter at the final stage. It is unable to determine if a convicted

person deserves the invocation of the power of mercy. There is a

failure of will and the edifice of absolute certainty and

infallibility crumbles. A government that will brook no challenge to

its will, fails to live upto its own self-image of being relentless

in its determination to protect society from the reprobates who

threaten its cohesion and peace. For the highest judicial body in the

country to admit on various occasions that it has erred in theimposition of death is to shed the cloak of infallibility. Further, a

delay in carrying out an execution represents a failure of will of

the State.

These arguments lead to a singular inference: with the transition

from the medieval notion of the sovereign as the absolute power, to a

modern principle of popular sovereignty, the death penalty itself

needs to be abolished. To carry this argument any further, we need to

make a further point: that popular sovereignty does not for its own

purposes of self-affirmation, require the negation of life in any

form, under any circumstances. From there we could conceivably moveon to making the further and stronger affirmation that the extinction

of human life, whatever be the circumstances, is a negation of

popular sovereignty.

A plain assessment of relevant facts would show that we are a long

way from arriving at either of these affirmations in the real world.

The circumstances in which killing enjoys the sanction of society are

today wide-ranging and we could quite credibly argue, that the

2 Michel Foucault, Discipline and Punish, The birth of the prison, London

1979, p 52.


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tolerance for inflicting death as a matter of social and political

necessity, is on the increase.

To put this in some perspective, let us refer to the executions that

happen not just under the due processes of the law, but in what could

be called the penumbra of the law. These are actions that haveacquired a special status within the popular vocabulary, as

encounters carried out by officials of the state without the formal

sanction of the law, but with an assurance thatpost facto legitimacy

will be granted. Coincidentally, we had just a few days back, the

release of the report on India by the U.N. Special Rapporteur on

Extrajudicial, Summary or Arbitrary Executions. It reminds us that

certain grim figures we should really have been more attentive to,

have for long been in the public domain, without eliciting the kind

of critical social response they called for. India has the dubious

distinction as a country, of adding the term encounters and fake

encounters into the international discourse on human rights. And ina period of fifteen years since 1993, we have had 2,560 deaths

arising from encounters with the police. Of this number, almost half,

i.e., 1,224 cases were established by the National Human Rights

Commission (NHRC),3 a conformist body which does not step out of line

of the official narrative unless the evidence is really compelling,

as fake.

There is a problem of consistency between various definitions. The

National Crime Records Bureau (NCRB) has its own system of

classification, in which we are given a rather different estimation

of crimes involving uniformed officers of the State. It is notimmediately apparent if the definitions employed by the NCRB match

those used by the NHRC. The lessons that the NCRB statistics impart

though, are very clear: of all the complaints lodged against the

coercive arm of the State, i.e., the police in any given year, well

over half are dismissed on sight as unsustainable or spurious. Of the

rest, well over 90 percent go before internal mechanisms of

accountability. Fewer than 5 percent of cases are referred to

magisterial or judicial procedures. And the susceptibility of

magistrates and judicial officers at the lower rung to the sheer

coercive power deployed by agencies of the executive such as the

police is another real world factor that we have to bring intothis calculation.

Clearly, there is a violation of the fundamental principle of fair

legal process here: that no person can be judge in his own case. The

consequence is a situation of absolute impunity in the matter of

extra-judicial killings. It is only the very rare case, such as the

recent killings of Sohrabuddin Sheikh and Ishrat Jahan, where the

armour of impunity is breached. There are occasional expressions,

3

U.N. Human Rights Council, Twenty-third session, Agenda Item Three,Addendum, Report of the Special Rapporteur on Extrajudicial, Summary or

Arbitrary Executions, Christoph Heyns Mission to India, April 26, 2013.


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somewhat more generalised, of dissent, as with the Supreme Court

recently deprecating the State killing its own people, in the context

of the encounters in Manipur state that have become the subject of a

judicially mandated inquiry.4 The substantive impact of this manner

of intervention is however, far from being clear. It may be premature

to say that there is broad popular consent for the impunity that theapparatus of the law enjoys. But it certainly is true, that there is

yet no organised or clearly articulated dissent. Where indeed, there

is, it gains little voice or traction since the forces enforcing

silence are far more powerful.

So here is a situation of officers of the State enforcing violence

not through the processes of the law, but with the assurance ofpost

facto sanction, underwritten by the consent manufactured or

otherwise is a question we should separately address -- of civil

society. There is yet a third category of sanctioned violence that

has been common in India. And this is a virulence that originateswithin civil society and runs its course with the tacit connivance of

the State. The State is in modern political doctrine, the agency with

a monopoly of legitimate violence, but there are situations in which

it is prepared to yield this mantle of legitimacy to certain actors

within civil society, on the strength of a largely unstated compact.

Thus we have had episodes of mass violence virtually from the very

beginning of Indias career as a sovereign republic. They have been

classified under the scholarly and bureaucratic rubrics in various

ways: communal violence and caste atrocities being the two main

categories. But certain key characteristics are shared: a generalised

failure of the State apparatus to contain the violence, impunity forthe perpetrators and little redress for the victims.

Still another category of violence would be that which occurs

securely within the domain of the family and the clan. The formal

system of the law is explicitly in disapproval of this pattern of

violence but has little ability or will to intervene or provide

redress. In recognition of this incapacity, there are several who

argue that the formal apparatus of the State should stay out of this

domain and allow customary institutions and practices to prevail.

This often has malign effects on even the formal guarantee of

equality that the State holds out. We have had lawyers who joined inthe defence of widow immolation in Rajasthan becoming legal

luminaries and in one case, a judge of the High Court.5 We have a

4 This observation of the Supreme Court is mentioned in the report of the

U.N. Special Rapporteur, cited in footnote 3.5In 2004, a lawyer who had joined an agitation in 1987 within Rajasthans

Rajput community to permit a ritual observance glorifying the practice of

widow immolation or sati, soon after a young woman from the state had

reportedly burnt herself on her deceased husbands funeral pyre, was

appointed to the High Court. This was despite a sustained agitation by

womens rights groups and other civil rights advocacy organisations. See

Sanghamitra Chakraborty, The Devis Advocate, Outlook, September 27,2004, extracted May 28 2013 at:

http://www.outlookindia.com/article.aspx?225259 .
http://www.outlookindia.com/article.aspx?225259http://www.outlookindia.com/article.aspx?225259


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Member of Parliament from the ruling party arguing that the

institutions of caste such as the khap panchayat should be given

their due recognition as instrumentalities of justice delivery where

the law fails to reach.6

Going beyond these categories now and moving to a different plane,how do we place these different modes in which violence occurs,

within a broader conceptualisation of crime and punishment in a

liberal democratic order? Since we are dealing with the death penalty

which is the surviving relic of an older order, how do we see the

persistence of this despotic instrument within what we imagine is an

enlightened liberal dispensation? The story is obviously a

complicated one but I have tried to simplify it here. My argument

here is simply that in the transition from despotism to liberalism,

certain exceptions were always considered warranted and necessary, so

that the full charter of rights would not be applied universally.

There were certain requirements that every aspirant had to fulfilbefore he gained entry into the liberal order. And those who failed

to meet these requirements would suffer abridgments of their rights,

of varying degrees of severity. These could cover the entire

spectrum: from a denial of sovereignty or any opportunity to dispose

of bodily skills and mental faculties in a manner of his or her

choice, to an explicit denial of liberty and finally the denial of

the right to life itself.

I will consider the liberal philosophers from the formative years of

modern western democracy here, since doctrinal conflicts and dilemmas

are most sharply reflected during conjunctures of change. Once theforces of transformation have run their course and society has

settled into a calm and consensual mode of functioning, philosophical

thinking tends to lapse into conformism.

Hobbes and Locke are two figures of special relevance here. Writing

during the English civil war, Hobbes posited a model that saw man as

6 Naveen Jindal a Member of Parliament representing the Congress party in

Haryana and a former Chief Minister of Haryana, Om Prakash Chautala,

recently made common cause arguing that the khap panchayat deserved a fair

hearing in matters of enforcing marital law. The khap panchayats alacrityin enforcing honour killings on individuals who married outside their

caste or within the same gotra a supposedly primeval but most likely

socially constructed family lineage was at the time earning it much

public opprobrium. But Jindal praised the institution for its role in

administering society before the formal systems of law were instituted and

urged that its demands for a legal ban on the forms of marriage deemed

taboo, should be considered in all seriousness. See: Navin Jindal supports

khap panchayat, The Hindu, May 10, 2010 (National News), extracted May 28,

2013 at:http://www.hindu.com/2010/05/10/stories/2010051061441000.htm . In

the case of Chautala, the support he extended to the khap panchayat was

read as a way of entrenching his support among the Jat community. See

Chautala backs khap marriage idea, The Indian Express, October 11, 2012

(dateline Chandigarh), extracted May 28, 2013 at:http://www.indianexpress.com/news/chautala-backs-khap-marriage-age-

idea/1015113/.
http://www.hindu.com/2010/05/10/stories/2010051061441000.htmhttp://www.hindu.com/2010/05/10/stories/2010051061441000.htmhttp://www.indianexpress.com/news/chautala-backs-khap-marriage-age-idea/1015113/http://www.indianexpress.com/news/chautala-backs-khap-marriage-age-idea/1015113/http://www.indianexpress.com/news/chautala-backs-khap-marriage-age-idea/1015113/http://www.indianexpress.com/news/chautala-backs-khap-marriage-age-idea/1015113/http://www.hindu.com/2010/05/10/stories/2010051061441000.htm


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inherently acquisitive, driven into continual conflict with fellow

man and requiring the strong hand of a sovereign to render him fit

for an existence within society.7 All rights in other words,

principal among these being the right to property, or the ability to

determine what is mine, thine and his, rested with the sovereign

and could be allocated among subjects in a manner of his choice. Thiswould seem to put Hobbes outside the liberal spectrum, casting him

almost as an apologist for royal despotism. Yet, as the political

theorist and philosopher C.B. MacPherson has shown, Hobbes is among

the first to clearly enunciate the foundational principles of

liberal-democratic philosophy. He drew on contempory conceptual

breakthroughs by Galileo in the physical domain, which posited

continual motion rather than a state of rest, as the basic state of

nature. In course of his perpetual movement, man enters into

collision with others of his species, his instinct for acquisition

creating the grounds for conflict with his fellows, leading to a war

of all against all in which life for all would be nasty, brutishand short. There was in other words, no alternative but to have a

strong sovereign power an artificial man as Hobbes puts it

which would stand above this state of unending war by imposing a law

and ensuring that the norms of property (or propriety in Hobbes

language) were duly respected.

For those who failed to honour the law he laid down, the sovereign

would reserve various kinds of punishments. A crime committed against

an individual subject would attract one variety of punitive sanction,

one committed against an official enforcing the sovereign will, quite

another. In the former case, the harm was confined to one person,while in the latter, the damage extends it selfe (sic) to all.

Anything that involved material damage to the sovereigns interests,

such as the betraying of the strengths, or revealing of the secrets

of the king to an enemy would be deemed a crime. So too would

anything that tended to diminish the Authority of the same, either

in the present time, or in succession.

Stripped of its seventeenth-century idiom, Hobbes is clearly speaking

here of the modern penal provisions of obstructing or in some way

harming an officer of the law in the performance of his duties, and

of treason and sedition. All of these are actions which involve achallenge to the majesty of the sovereign and would be categorised in

modern legal parlance, as crimes against the State.

Punitive sanctions in turn could take several forms: pecuniary,

corporal and capital. Each has its specific place within the

architecture of power. And capital punishment here is the Infliction

of Death; and that either simply, or with torment. Though the

ultimate purpose was to rid society of one who refused to live by its

rules, the manner in which death was inflicted had its own didactic

7C.B. MacPhersons introduction to a Penguin edition of Hobbes Leviathan,

London, 1968.


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purpose. The preceding period of torment, when the convicted man was

expected to make a public confession of his crimes, served the

purpose of deterring any who might seek to follow in his path. It may

be added here, that though torment has today been eliminated from

the modes of inflicting death at least in terms of the formal law -

- society still retains a sharp interest in the words and demeanourof a convict at the moment of his execution, as final validation of

its power to extinguish life.

A half-century or so after Hobbes, Locke observed a rather more

placid state of affairs, with England in the rosy flush of the Stuart

Restoration. He had in consequence, a much happier view. Man, said

Locke, is inherently in harmony with society. Those who seemingly

fail to get a fair deal out of bourgeois-liberal rules, must

necessarily have invited that fate upon themselves by some act so

much at variance with accepted norms of conduct, that death was the

deserved punishment. Once reprieved by societys magnanimity, thedelinquent elements were obliged to repay the debt incurred by

putting themselves, in body and soul, at the disposal of the wronged

persons.8

Locke was simply put, a firm and faithful adherent to the dogma of

the original sin, which saw all social inequities as the

consequence of some primeval act of transgress. The world was created

in all perfection by divine ordainment. But there were regrettably,

among the denizens of this perfect world, many who were unable to

live by the indispensable rules that would ensure peace and

tranquillity. Those guilty of contravening the rules handed down by abenevolent creator, would be spared a deserved retribution, only if

they were to resign themselves to a lesser charter of rights.

Every person was otherwise sovereign over his body, his labour and

his faculties: every man has a property in his own person: this no

body has any right to but himself. The labour of his body, and the

work of his hands, we may say, are properly his. Whatsoever then he

removes out of the state that nature hath provided, and left it in,

he hath mixed his labour with, and joined to it something that is his

own, and thereby makes it his property. It being by him removed from

the common state nature hath placed it in, it hath by this laboursomething annexed to it, that excludes the common right of other

men... Thus the grass my horse has bit; the turfs my servant has cut;

and the ore I have digged in any place, where I have a right to them

in common with others, become my property, without the assignation or

consent of any body.

From being a circumstance requiring a special justification,

inequality and a forfeiture of rights over bodily capacities and

8

John Locke, An Essay on Government, available in numerous editions,including in e-books. The key sections here would be between paragraph 1

and 50.


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faculties the turfs my servant has cut become an integral

element within the liberal-democratic framework as conceived by

Locke.

Three varieties of power are in play in sustaining this state of

liberal-democratic harmony: the parental, political and despotic.Parental power is something that all of tender years put themselves

under with the sanction of society. It is what is today called the

primary socialisation process, which equips them to deal with the

world outside as they grow to mature years. And once of sufficient

maturity to take part in public affairs, each individual who is

sovereign in himself and enjoys full power to dispose of his person

and faculties in any manner he thinks fit nevertheless sees a

pragmatic purpose in delegating the authority to enforce this state

of perfect concord, to a politically constituted entity or civil

government.

It is however, the third form of power in Lockes framework that is

key here. Despotic power for him, is an absolute, arbitrary power

one man has over another, to take away his life, whenever he pleases.

This is a power, which neither nature gives, for it has made no such

distinction between one man and another; nor compact can convey: for

man not having such an arbitrary power over his own life, cannot give

another man such a power over it.Despotic power rather, is the

effect only of forfeiture, which the aggressor makes of his own life,

when he puts himself into the state of war with another... for having

quitted reason, which God hath given to be the rule betwixt man and

man, and the common bond whereby human kind is united into onefellowship and society; and having renounced the way of peace which

that teaches, ... he renders himself liable to be destroyed by the

injured person, and the rest of mankind, that will join with him in

the execution of justice, as any other wild beast, or noxious brute,

with whom mankind can have neither society nor security.9

Despotic power in other words, is invoked in a state of war, when

society is forced to take up arms against elements within which

threaten its internal harmony. And once despotic power is called into

play, the common human decencies cease, since the target of social

wrath is one who has forfeited all rights. It could be added here,that the Supreme Court of India has frequently in its rulings on the

death penalty, echoed this sentiment of the brutish or beastly

man being a menace to society. In the case of Kuljeet Singh (better

known as the Billa and Ranga case), the court held that the survival

of an orderly society demands the extinction of the life of persons

like Ranga and Billa who are a menace to social order and security.

And in the case of Ram Deo Chauhan, the court took the argument on

the protection of society to what has been described as a new low,

9 Ibid, section 172.


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by ruling that when a man becomes a beast and menace to the society,

he can be deprived of his life.10

Moving on in the evolution of the liberal-democratic doctrine

to Immanuel Kant, we see the principle of man in conflict with

society being elevated to little less than the principalmotive force, the mainspring, of human progress. For Kant, the

antagonism of men in society was nothing less than the means

that nature had itself decreed to accomplish the

development of all (human) faculties. Ends that individual

human beings would care little for if they knew about it are

promoted by each pursuing his own ends according to his

inclination and often one against another (and even one entire

people against another). Given these inherent qualities of

the individual and the human species, Kant saw the supreme

test (that) nature has set for mankind as the evolution of a

perfectly just civil constitution. Such a regime of lawalone could ensure the development of all faculties of man by

his own effort. The greatest degree of freedom should be

assured under the law, so that there is a very general

antagonism of (a societys) members. But there should also be

concurrently, a precise determination and enforcement of the

limit of this freedom.11

How does harmony emerge by some miracle, from the collisions

of infinitesimal individuals who share nothing except the

instinct for acquisition and a tendency to allow their egos to

take over their existence? In his Critique of PracticalReason, Kant was to return to this issue, proposing among his

most crucial axioms, that the human will should freely

submit itself to the law. In this sense of free submission

lay the preservation of individual liberty. Every individual,

under the reign of reason, would be enjoined to act as though

the exercise of his will could always at the same time hold

good as a principle of universal legislation.12

Kant was not of course a theorist of civil society in the manner that

Hegel was. But his notion of a settled and agreed pattern of social

practice that would conform with civilised norms, independent of theState and the coercive power it holds in reserve, is as clear a

construct of civil society as can be found in the thicket of

conceptual confusion that has sprouted around the term.

Three principles are essential to the constitution of the civic

state in Kants judgment: 1. The freedom of each member of society

10 Both quotations from Lethal Lottery, as cited in footnote 1, pages 75

and 87.11Immanuel Kant, Idea for a Universal History with Cosmopolitan Intent,

in Allen W. Wood (editor), Basic Writings of Kant, New York, 2001, p 119.12Kant, Critique of Practical Reason, in Allen W. Wood (editor), op.

cit., p 238.


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as a man; 2. The equalityof each member with every other as a

subject; 3. The autonomy of each member of a commonwealth as a

citizen.13 There was though, one condition that every person had to

satisfy to qualify for all the rights available to a citizen. And

these lines from Kant encapsulate the central dilemma of the liberal

doctrine so well, that they need quotation at some length: Therequisite quality for (citizenship), apart from the natural one that

the person not be a child or a woman (sic), is only this: that such a

person be his own masterand hence that he have some property (under

which we may include any art, craft, or science) that would provide

him with sustenance. To put this another way, he must be a man who,

when he must earn a livelihood from others, acquires property only by

selling what is his own and not by conceding to others the right to

make use of his strength.14

Clearly then, the man who has no sovereignty over his person, over

the manner in which his bodily strengths and mental faculties aredeployed, does not merit the rights of citizenship. It is a dilemma

of liberal-democratic theory that persists to this day, one that

detracts seriously from its claim to being a doctrine of equality.

Let me quickly wind up this excursus into the history of ideas with a

consideration of Immanuel Kants great contemporary Adam Smith. Now

remembered as the founder of the modern discipline of economics,

Smith was also a moral theorist profoundly concerned with the law and

justice. Though he shared much in Kants worldview, in seeing the

unfettered exercise of the human will as the best guarantee of

progress, he saw a quite distinct process of mitigating the conflictpotential inherent in this situation. He considers the emotion of

sympathy, in this respect: an emotion that every person is

susceptible to, though one difficult to intuit since it goes beyond

the senses and common faculties. The illustration Smith used was of a

witness to torture. A person who sees a near and dear one upon the

rack, he argued, would have no way of knowing through his senses and

faculties, of his true suffering. But the sight nevertheless stirs up

deep emotional turmoil. Sympathy, says Smith, once referred to the

emotions of pity and remorse, but could more accurately be

characterised as one mans sharing in the emotions whether merited

or not of another.

This was, said Smith, an illogical sentiment if any, which could be

ascribed solely to the generalised dread of death that all humanity

suffered. The emotion of sympathy arose from the sense of mortality

that all humanity was condemned to live under, an emotion that indeed

was one of the most important principles in human nature. Indeed,

the fear of death made every individual intimately aware of the

limits to which he could challenge or push back against the norms

13

Kant, Concerning the Common Saying: This May be True in Theory but Doesnot Apply to Practice, in Allen W. Wood (editor), op. cit., p 420.14 Ibid, p 424, emphases in original.


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imposed by society. This singular trait in human nature was

responsible for the sense of discrimination that every individual

possessed between justice and its opposite.

The sense of Smiths remarks is clear. All life is finite and worth

treasuring. But one who pushes too hard against social norms risksforfeiting his right to live. He will be dealt with either in

accordance with societys powers of sanction -- if necessary through

capital punishment -- or else through lesser devices. Though never

quite convinced of the moral basis by which a society could deprive

an individual of his life, Smith was prepared to put up with it as a

necessary evil. The fear of death, he argued, was the great poison

to the happiness, but the great restraint upon the injustice of

mankind; which, while it afflicts and mortifies the individual,

guards and protects the society.15 In contrast to Kant, who saw an

exalted and rather reified notion of Reason as the ultimate arbiter

in a society that would otherwise be torn apart by the competitiveinstincts of its members, Smith saw a kinder, gentler attribute of

sympathy serving that function.

The key issues here could be summed up in a few lines. The liberal-

democratic order is built on a model of competitive man, which in

turn is an acknowledgment that conflict is inherent in society.

Conflict is contained by enacting a civil constitution that enshrines

equality as a value without holding out any form of assurance of

substantive equality. Individuals without sovereignty over their

persons and their faculties would not be entitled to the full rights

of citizenship. But as a pragmatic decision, they could be grantedformal rights since a benevolent State could conceivably create the

conditions under which they could lift themselves out of deprivation

into a state of genuine equality. All who choose to dishonour or defy

the compact under which liberal-democratic society is established,

forfeit the right to the protection of its laws. The right to life

becomes in extreme cases, an indefensible entitlement for these

recalcitrant elements.

Let us turn now again to the situation in India and the manner in

which the death penalty has been preserved as an element of the law

and implemented over the years. This is only to consider it in itspolitical context, not in terms of the extensive jurisprudence that

has come up around the theme. Two of the moral preceptors of Indian

independence Gandhi and Ambedkar both expressed themselves not

just once, but at several critical junctures, against the retention

of capital punishment.16 And this was against the background of the

Karachi session of the All India Congress Committee in 1931, the

15 Adam Smith, The Theory of Moral Sentiments, New York, 2000, pp 3-9.16 It should be added here that at the time that the Indian Constitution

was written and adopted, Ambedkar was certainly not recognised as a moral

preceptor. That status came to him later, after roughly four decades ofIndias existence as a sovereign republic. He was however, acknowledged to

be a person of great legal expertise and wisdom.


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first formal attempt at laying down a constitutional framework for

Indian independence, making it an explicit commitment to do away with

capital punishment.

Yet, at the decisive moment, when the republican constitution was

actually enacted, the death penalty remained on the statute. Whatexplains this seeming anomaly? The question prompts a reevaluation of

some of the mythologies of our nationhood and a sober assessment of

the pathway that brought us to independence and the strategies that

have since been deployed in sustaining national unity. Paul Brass for

instance, has said that the Indian constitution was born not in the

abundance of hope and unbound ambitions, as we would like to believe,

but in fear and trepidation. There were, on Brasss reading,

several factors that contributed to the unsettled national mood at

independence, notably the partition, the war in Kashmir, the near-

insurrectionary conditions in Hyderabad state, and memories of the

acute food crisis of the war years. The fear of disorder was alooming presence all through the Constituent Assembly debates and it

led to a number of qualifications being inscribed into the

Constitution on the fundamental rights of free speech and

association. The numerous emergency powers conferred on the Central

Government under the Constitution were, Brass argues, a direct

outcome of this sense of trepidation.17 So too, we may add, was the

retention of the death penalty.

This fear of disorder led to a number of practical concessions being

made to older power cliques whose sustenance otherwise would be in

flat-out contradiction to basic republican values. There were alsosections that by virtue of the partition and the circumstances of the

national unification that followed, were seen to be in forfeit on the

rights that all others were guaranteed. These foundational

characteristics of the Indian nation have created their own terrains

of violence, a violence that is exercised within civil society, often

with the active connivance of the State. They also determine to a

great extent how the State exercises its right to violence: both the

legitimate kind and in that other, more shadowy form in which

legitimacy is conferred after the fact. In recent years and

especially since the Indian elite began discovering in the battle

against terrorism, an identity of interests with the western powersthat had earlier been elusive, that has become another rubric under

which rights can be denied and even the due process of law made

superfluous. That was the essence of two recent rulings by the

Supreme Court, in one of which it upheld a death sentence despite the

passage of endless years since it was imposed which in its more

enlightened jurisprudence the court had likened to cruel and inhuman

treatment on the grounds that the convict had been guilty of a

crime of terrorism. Another convict who made a case on the same

grounds for the commutation of his death sentence, was granted a

17Paul Brass, The Strong State and the Fear of Disorder, in Francine

Frankel (editor) Transforming India, Oxford, 2000.


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reprieve because he had been sentenced for a lesser crime than

terrorism. In a context in which one of the aspirants for the Prime

Ministership of the country is on record saying all Muslims are not

terrorists, but all terrorists are Muslims, this fairly explicit

exception to the guarantees of fundamental rights and lawful process,

holds grim forebodings for the future of democracy in India.

Crime and Punishment in Liberal Democratic Doctrine

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